Hibernia Savings & Loan Society v. Brittan

HART, J.

This is an appeal, upon the judgment-roll alone, from a decree foreclosing a mortgage upon certain real property of the defendant.

The decree directs the sale of the mortgaged premises by a commissioner named by the court, and further adjudges and decrees that the purchaser or purchasers of said premises at such sale be let into the possession thereof, and that any person or persons who may be in the possession of said premises or any part thereof, or “who, since the commencement of this action, has come into the possession under them, or either of them, deliver possession thereof to such purchaser or purchasers,

on production of the commissioner’s deed

for such premises, or any part thereof. And it is further ordered, adjudged and decreed, that in case the purchaser of said premises or any part thereof at said commissioner’s sale shall be refused possession thereof, a writ of assistance shall forthwith issue without further notice or order of this court requiring the sheriff ... to place and maintain said purchaser in the quiet and peaceful possession of said premises, and every part thereof.”

It is objected that the foregoing provisions of the decree are erroneous because the purchaser at the commissioner’s sale could, by virtue thereof, be let into the possession of the mortgaged premises before the expiration of the time within which said premises may be redeemed.

We do not think the provisions of the decree to which criticism is thus directed should be subjected to the construction which the appellant here gives them. To the contrary, we think they mean and were clearly intended to mean that the purchaser of the mortgaged premises at the commissioner’s sale should be entitled to and put into the possession thereof upon the production of the commissioner’s deed, showing title in him, only when, under the law, he was rightfully entitled to possession. In other words, since it is true that a purchaser of property at a sale under the foreclosure of a mortgage does not acquire the right to the possession of such property until the time for the redemption from such sale has expired

(Purser

v.

Cady,

120 Cal. 214, [52 Pac. 489];

Mau, Sadler & Co.

v.